Category Archives: resign to run

“Resigned Kerr County Attorney Stays On Job”

From a piece by Zeke MacCormack at MySanAntonio.com:

Although Henneke’s announcement of plans to run for state representative with more than a year remaining on his term triggered his automatic resignation under the Texas Constitution’s “resign to run” provision, he said the law allows him to stay on the job until replaced.

Gov Perry Vetoes SB 219, the Texas Ethics Commission Sunset Bill

Governor Rick Perry just vetoed SB 219, which was the Ethics Commission sunset bill but also contained many objectionable provisions.  Perry’s objections were as follows:

SB 219 contains several important changes to the state’s ethics laws, especially those relating to the sworn complaint process. However, these positive changes are outweighed by several provisions added late in the legislative process without an open and honest discussion.

The last-minute addition of a resign-to-run requirement for members of the Railroad Commission would change the structure of a constitutional agency without the consent of Texas voters. Any effort to amend a constitutional office should go to a vote of the people.

This bill would also strip a journalist’s testimonial privilege if the journalist has made direct political expenditures, or is affiliated with entities that make such expenditures.

SB 219 also allows the Ethics Commission to set an annual document filing fee for candidates and groups who file campaign finance reports. Candidates should not be charged for participating in a process intended to be transparent, to pay for a state agency. The legislature should continue to set the fee to run for office in a transparent and open way, rather than leave that to a state agency.

The Legislature had an opportunity, through the Sunset review process, to make needed changes to our campaign finance, lobby and financial disclosure laws – changes that are needed to modernize laws while still protecting our rights and providing for transparency. I urge the Legislature to look closely at our ethics laws during the interim in an open, deliberative and transparent way, so that all voices are heard and all proposals are thoroughly discussed.

I wrote previously about the problems with the “resign to run” provision targeting the Railroad Commission alone (see here and here), the new free speech tax (document filing fee), and the unnecessarily onerous broadcast disclosure provisions. Perry cited another curious provision that I hadn’t gotten around to writing about yet: the removal of the testimonial privilege for certain journalists. I’ll follow up with more analysis. This bill was loaded with ridiculous provisions demonstrating a lack of respect for free speech and association.

Explanations For Railroad Commission Resign to Run Provision Don’t Make Sense

Supporters of the “resign to run” provision targeting only Railroad Commissioners in SB 219 claim it’s somehow necessary because, otherwise, donors from the industry regulated by the RRC could fund a Commissioner’s campaign for other office (and presumably create the appearance or actuality of corruption).  Christy Hoppe of the DMN Trailblazers blog writes that “[l]awmakers wanted commissioners not to tap the interests they are regulating to pay for expensive campaigns for other office.”

If that is truly what animated this provision, it This justification is either fabricated or is a shockingly poorly drafted law, for the following reasons:*

  • The bill doesn’t have anything to do with a Commissioner running for re-election to the Commission. (If industry wanted to corrupt a commissioner, wouldn’t they be more interested in one staying put than one seeking other office?)
  • There is no suggestion that committee chairmen in the House or Senate should be prohibited from accepting campaign funds from those affected by their committees (this presents the same  corruption threat, but is of course not addressed)

The generalized threat of corruption is present with respect to any person, running for any office, at any time. The answer is to require disclosure of campaign finances, which is already required in minute detail by the Election Code. People can see where a candidate’s funding comes from and make judgments accordingly. The reality is that the office of Railroad Commissioner is no different than any other political office, and this provision does not address any corruption threat because it was not drafted for that purpose. Instead, it singles out a particular office, and removes a potential choice from voters.

[*I shouldn’t allege “fabrication”; the law speaks for itself.]

New “Resign to Run” Provision Targeting Railroad Commission Raises Question of Fundamental Fairness

While the general wisdom of “resign to run” provisions is open for debate, the Legislature raises new questions about its motivations with a strange, last-minute addition to SB 219, which expands “resign to run” to statewide offices.  Well, actually, expands it to only one statewide office: Railroad Commissioner.

SB 219 began as the Texas Ethics Commission “sunset” bill. The provision in question was added as a floor amendment (#2) in the House on May 20, and then retained in the conference committee version passed by both chambers.  If signed by the Governor, new Election Code section 253.044 would provide:

If a person who is a railroad commissioner announces the person’s candidacy, or in fact becomes a candidate, in any general, special, or primary election for any elective office other than the office of railroad commissioner, that announcement or that candidacy constitutes an automatic resignation of the office of railroad commissioner.

This provision raises questions for a couple of reasons.

First, it applies only to the office of Railroad Commissioner, rather than to a category of offices. By contrast, Texas’s other resign to run provisions apply to large categories, such as district, county and precinct offices (Tex. Const. art. XVI, section 65) and municipal offices with terms exceeding two years (Tex. Const. art. XI, section 11).

Second, this new provision would apply throughout the entire term of office. A Railroad Commissioner would be prevented from “announcing” candidacy or filing for any other office until the last day of his or her term. Again, this is in marked contrast to the constitutional provisions applicable to county and municipal officers, who may announce or file for another office without resignation so long as they do so in the last 13 months of their term.

Again, the wisdom of resign to run, as applied to any office, is questionable. Officeholders are ultimately accountable to the voters for their performance, and resign to run provisions deprive the voters of their interest in supporting the candidates of their choice. At this moment, several statewide officeholders are actively running for other offices. Land Commissioner Jerry Patterson is campaigning for Lieutenant Governor. Ag Commissioner Todd Staples is too. Attorney General Greg Abbott is widely reported to be preparing for a gubernatorial bid. If resign to run applied to statewide offices, Texas voters would either be deprived of the services of these individuals in their current offices or denied the right to cast a vote for them for another office in 2014.

Yet, the Legislature targets the office of Railroad Commissioner alone. Why? And why with such an onerous provision?

It seems clear to me that the target is one person: Barry Smitherman. He was appointed to the RRC in 2011, chosen as Chairman in 2012, then went on to win election in November 2012 for a term through 2014. He won the General with 74% of the vote, amounting to 4.5 million votes. Smitherman is reportedly interested in running for Attorney General in 2014. Interestingly, there are at least two current members of the Legislature, Rep. Dan Branch and Sen. Ken Paxton, who are also reported to be interested in the AG’s race. Coincidence?

In the world of campaign finance, it is easy to observe how legislatures (populated by incumbents) are adept at passing restrictive laws burdening outsiders and benefiting themselves. The fact that the Legislature has targeted a single office–and perhaps a single person–with a new, onerous resign to run provision raises a serious question: have they have done so to keep Smitherman out of the AG race, clearing a path for a few of their own to fight it out? Given the oddly narrow scope of this provision, the burden should be on the Lege to defend it.